Citation Nr: 0017193
Decision Date: 06/29/00 Archive Date: 07/05/00
DOCKET NO. 99-02 553 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. M. Rogers, Associate Counsel
INTRODUCTION
The veteran had active military service from February 1968 to
January 1970.
This matter comes to the Board of Veterans' Appeals (Board)
from a March 1998 rating decision of the Department of
Veterans Affairs (VA) Houston, Texas Regional Office (RO), in
which the RO, inter alia, denied entitlement to service
connection for PTSD. The veteran perfected an appeal of the
March 1998 decision.
FINDING OF FACT
The veteran has submitted evidence sufficient to justify
belief by a fair and impartial individual that his claim for
service connection for PTSD is plausible.
CONCLUSION OF LAW
The claim of entitlement to service connection for PTSD is
well-grounded. 38 U.S.C.A. § 5107 (a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran's service medical records are negative for
complaints, findings, diagnosis or treatment for PTSD.
The veteran's DD Form 214 reflects that his period of active
duty included one year, eleven months, and twenty-nine days
of which eleven months and twenty-one days of that time was
sea and/or foreign service in the Republic of Vietnam. The
veteran's awards and commendations include the National
Defense Service Medal, the Vietnam Service Medal, the Vietnam
Campaign Medal with Device, and the Good Conduct Medal.
There are no combat awards or decorations reported. The
veteran's occupational specialty, as reported on his DD Form
214, was truck driver.
VA Medical Center (VAMC) outpatient treatment records from
August to October 1997 show that the veteran received
treatment for depression, flashbacks, and anger outbursts.
Although the veteran could not refer to any particularly
traumatic incident, he stated that he smells, sees, and hears
the various experiences he encountered during the Vietnam
War. The veteran reported that he has a very labile
personality and he flies off the handle at the slightest
provocation.
The VA examiner found that the veteran did not appear to be
emotionally liable, overly anxious or tearful. The veteran
denied having an increased startle response. He did,
however, state that once while working on his farm he heard a
jet flying overhead and crawled under his tractor for cover.
The veteran denied avoiding things associated with the war
and he told the VA examiner that war movies upset him because
he had flashbacks after watching them. The veteran also told
the examiner that when angry he has threatened to harm or
kill various people including his wife and son-in-law. The
veteran reported having brandished a gun on people at least
three times, but he has not shot anybody since the war. The
veteran stated that during the 1970's he was involved in two
fights, but he has not been in a fight since that period of
time. He denied having any previous head injuries or abuse.
He also denied currently having suicidal/homicidal ideations
or audiovisual hallucinations except those associated with
war, flashbacks, or paranoia. Assessment was PTSD and
dysthymia with PTSD symptoms. Impression was anxiety
disorder, possible PTSD. It was also noted that the veteran
had PTSD symptoms related to Vietnam combat.
The veteran initially claimed entitlement to VA disability
compensation in October 1997, at which time he indicated that
he had PTSD as the result of service.
In January 1998, the RO sent a letter to the veteran
requesting that he describe the traumatic events that
occurred while he was in service. As of this date, no
response has been received from the veteran.
During a February 1998 VA psychiatric examination, the
veteran reported having a dream about being back in Vietnam
fighting in the war. The veteran also reported being hit by
fire everyday while in Vietnam. He remembered seeing seven
Viet Cong being killed by fire one night. He further
reported seeing people shot and killed. He also remembered
an attack on a convoy and having to clean up the bodies while
thinking it could have been him. The veteran told the VA
examiner that he is angered very easily and he has flashbacks
and dreams about his Vietnam experience. He also reported
that if anyone aggravates him, he wants to kill them.
The VA examiner noted that during a symptom review, the
veteran stated that he sleeps no more than four or five hours
a night. He also reported that he is not interested in
anything, although he does not feel guilty or worthless. The
veteran told the VA examiner that he feels that he has too
much energy and his concentration is up and down. He
reported that his appetite was intact and the VA examiner
observed that the veteran moved nervously during the
interview. The veteran stated that his last suicidal
ideation was several months ago when he thought about getting
a gun and killing his family and himself. The veteran
reported that he cannot be around people and that he is in
fact estranged from most people. The veteran reported that
he has persistent symptoms of arousal, an exaggerated startle
response and problems sleeping. He further noted that he is
irritable and angry. The diagnoses were chronic PTSD and
depressive disorder.
In an October 1998 letter, a VA staff psychologist stated
that the veteran was treated for regular individual
psychotherapy to address PTSD symptoms while he was an
inpatient at the SouthWestern Blind Rehabilitation Center for
several weeks in 1997 and again in 1998. The veteran's
symptoms included depression, anxiety, exaggerated startle
response, sleep disturbance, and intrusive ideation. The
staff psychologist noted that the veteran meets the
Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition (DSM-IV) diagnostic criteria for PTSD.
In a June 1999 Informal Hearing Presentation, the veteran's
service representative requested that the veteran be afforded
one last opportunity to respond to the RO's January 1998
request for PTSD stressor information.
II. Laws and Regulations
Under the law, service connection can be granted for any
disability resulting from disease or injury incurred in or
aggravated during active military service. 38 U.S.C.A.
§ 1110.
As to a PTSD claim, the United States Court of Appeals for
Veterans Claims (Court) has held that such a claim is well-
grounded where there is medical evidence of a current
diagnosis of PTSD, lay evidence of an in-service stressor,
and medical-nexus evidence linking PTSD to the veteran's
service. See Gaines v. West, 11 Vet. App. 353 (1998); Cohen
v. Brown, 10 Vet. App. 128, 136-137 (1997).
After it has been determined that a PTSD claim is well-
grounded, the merits of the claim must be adjudicated.
Eligibility for a PTSD service connection award requires a
medical diagnosis of PTSD, credible supporting evidence that
the claimed in-service stressor actually occurred, and
medical evidence of a causal nexus between the current
symptomatology and the specific claimed in-service stressor.
See 38 C.F.R. § 3.304(f); Gaines, 11 Vet. App. at 357; Cohen,
10 Vet. App. at 138.
The evidence necessary to establish the occurrence of a
recognizable stressor during service to support a claim of
entitlement to service connection for PTSD will vary
depending on whether or not the veteran was engaged in combat
with the enemy. If the claimed stressor is related to
combat, and the evidence shows that the veteran served in
combat, his lay testimony may be sufficient to establish that
the claimed incidents occurred. If the veteran did not serve
in combat, or the claimed stressors are not related to
combat, corroborating evidence is required to show that the
claimed events actually occurred. Moreau v. Brown, 9 Vet.
App. 389 (1996).
III. Analysis
VAMC outpatient treatment records from August to October
1997, a February 1998 VA psychiatric examination report, and
an October 1998 letter from a VA psychologist indicate that
the veteran has PTSD. The first element of Gaines is
satisfied because there is a current medical diagnosis of
PTSD. The veteran has provided lay evidence of an in-service
stressor by recounting traumatic incidents he experienced
while serving during the Vietnam War and these statements are
presumed to be credible because there is no indicia of
incredibility. Arms v.West, 12 Vet. App. 188 (1999). The
Board finds therefore, that the second Gaines element, lay
evidence of an in-service stressor, has been satisfied.
The Board further finds that the VA psychiatrist's diagnosis
of chronic PTSD in February 1998 along with other VAMC
outpatient treatments records showing a diagnosis of PTSD and
treatment for PTSD serve as sufficient evidence of a nexus
between PTSD and the veteran's service. For these reasons
the Board has determined that the claim of entitlement to
service connection for PTSD is well-grounded.
ORDER
The claim of entitlement to service connection for PTSD is
well-grounded. To this extent, the appeal is granted.
REMAND
The Board finds the veteran's claim for service connection
for PTSD is well-grounded, meaning plausible, and based on a
review of the file, there is a further VA duty to assist him
in developing the facts pertinent to the claim. See 38
U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. §
3.159 (1999); Proscelle v. Derwinski, 2 Vet.App. 629, 631- 32
(1992); Epps v. Brown, 9 Vet. App. 341 (1996), aff'd , 126
F.3d 1464 (Fed.Cir. 1997), cert. denied, 118 S.Ct.
2348(1998).
The Board notes that the medical evidence shows a recent
diagnosis of PTSD. This is shown in the veteran's August to
October 1997 VA outpatient treatment records, a February 1998
VA examination, and an October 1998 letter from a VA
psychologist. Although in January 1998, the RO sent a letter
to the veteran requesting a description of his stressors, the
veteran failed to respond. The veteran's service
representative has requested that the RO give the veteran one
last opportunity to respond to the request for a description
of in-service stressors.
Therefore, the RO should assist the veteran with his claim by
requesting all of the veteran's service personnel records.
It should also again request detailed information from the
veteran as to his alleged inservice stressors and send all
necessary evidence to the United States Armed Services Center
for Research of Unit Records (USASCRUR) (formerly the United
States Army & Joint Services Environmental Support Group
(ESG) in an attempt to verify the stressors. These actions
need to be performed prior to appellate review. Once the
veteran's stressors have been verified or not, the veteran
should be scheduled for VA psychiatric examination to
determine if a diagnosis of PTSD is warranted based on the
specific inservice stressors.
In addition, where VA determines from the evidence that the
veteran did not engage in combat with the enemy or where the
veteran, even if he did engage in combat, is claiming
stressors not related to combat, his lay testimony alone is
not enough to establish that the stressors actually occurred.
Rather, his testimony must be corroborated by "credible
supporting evidence" and must not be contradicted by service
records. 38 C.F.R. § 3.304 (f) (1999); Zarycki, 6 Vet. App.
at 98. "Credible
supporting evidence" of combat may be obtained from many
sources, including, but not limited to, service records.
There is "an almost unlimited field of potential evidence to
be used to 'support' a determination of combat status."
Gaines, 11 Vet. App. at 359. However, "credible supporting
evidence" of the actual occurrence of an inservice stressor
cannot consist solely of after-the-fact medical nexus
evidence. Moreau v. Brown, 9 Vet. App. 389 (1996).
The Board further notes that the requirement to assist the
veteran in obtaining available records includes obtaining
records relating to the Social Security Administration's
(SSA) determination that a veteran is disabled. The record
in this case reveals that the veteran is in receipt of Social
Security Disability Benefits. Records pertaining to the award
of such benefits by the SSA have not been associated with the
record certified for appellate review. Such records may be
of significant probative value in determining whether service
connection for the disability at issue may be granted. As
the Court held in Lind v. Principi, 3 Vet. App. 493, 494
(1992), that the VA should attempt to obtain records from
other Federal agencies, including the SSA, when the VA has
notice of the existence of such records. Thus, the RO must
request complete copies of the SSA records utilized in
awarding the veteran disability benefits.
The Court has ruled that the fulfillment of the statutory
duty to assist includes the conduct of a thorough and
contemporaneous medical examination, one which takes into
account the records of prior medical treatment, so that the
evaluation of the claimed disability will be a fully-informed
one. Green v. Derwinski, 1 Vet.App. 121 (1991).
Accordingly, further appellate consideration will be deferred
and the case is REMANDED to the RO for the following
development:
1. The veteran should be requested to
identify all sources of recent treatment
received for PTSD, and to furnish signed
authorizations for release to the VA of
private medical records in connection
with each non-VA source he identifies.
Copies of the medical records from all
sources he identifies, including VA
records (not already in the claims
folder), should then be requested. All
records obtained should be added to the
claims folder.
2. The RO should request the SSA to
furnish a copy of the administrative
decision granting the veteran disability
benefits, as well as any supporting
documentation, to include all medical
examination reports and treatment
records. All records obtained should be
associated with the veteran's claims
folder.
3. The RO should attempt to verify the
veteran's claimed stressors.
Specifically, it should request a
detailed description from the veteran of
all claimed inservice stressors,
including unit, duty and ship
assignment(s), as well as the places,
dates, names, and any other information
vital to verifying such stressors.
4. The RO should request all of the
veteran's available service personnel
records from the National Personnel
Records Center (NPRC), 9700 Page
Boulevard, St. Louis, Missouri 63132.
5. Thereafter, the RO should make an
initial determination as whether or not
the veteran engaged in combat with the
enemy during service, as per 38 U.S.C.A.
§ 1154 (b) (West 1991), 38 C.F.R. § 3.304
(f), and the relevant case law. If the
RO determines that the veteran did not
engage in combat with the enemy during
service, it should attempt to verify the
veteran's alleged stressors.
6. The RO should review the file and
prepare a summary of all the claimed
stressors. This summary and all
associated documents should be sent to
the USASCRUR, 7798 Cissna Road,
Springfield, VA 22150. They should be
requested to provide any additional
information beyond that already provided
which might corroborate the veteran's
alleged stressors.
7. The RO should then schedule the
veteran for VA psychiatric examination
before a board of two psychiatrists with
consideration. If the RO found that the
veteran was involved in combat with the
enemy during service, it must inform the
examiners as to all of the veteran's
claimed stressors. If the RO found that
the veteran did not engage with the enemy
in combat, it must specify for the
examiners only the stressor or stressors
that it determined are verified by the
record and instruct the examiners that
only those events may be considered for
the purpose of determining whether
exposure to a stressor in service
resulted in current psychiatric symptoms.
The examiners must then evaluate the
veteran and render an opinion as to
whether the diagnostic criteria to
support a diagnosis of PTSD have been
satisfied. The purpose of the
examination is to determine the nature
and severity of the veteran's psychiatric
disorder and to assess whether said
disorder involves PTSD. If the examiners
determine that the veteran has more than
one psychiatric disorder, the
relationship of each disorder to the
other(s) (including etiological origin
and secondary causation) and which
symptoms are associated with each
disorder should be determined. If
certain symptomatology cannot be
disassociated from one disorder or the
other, it should be so specified. The
report of the examination should include
a complete rationale for all opinions
expressed. All necessary studies or tests
are to be accomplished. The entire claims
folder and a copy of this REMAND must be
made available to and reviewed by the
examiners prior to the examination.
8. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
examination report. If the examination
report does not include fully detailed
descriptions of pathology and all test
reports, special studies or adequate
responses to the specific opinions
requested, the report must be returned
for corrective action. 38 C.F.R. § 4.2
(1999) ("if the[examination] report does
not contain sufficient detail, it is
incumbent upon the rating board to return
the report as inadequate for evaluation
purposes."); Green v. Derwinski, 1 Vet.
App. 121, 124 (1991); Abernathy v.
Principi, 3 Vet. App. 461, 464 (1992);
Ardison v. Brown, 6 Vet. App. 405, 407
(1994).
9. After the above development has been
completed, the RO should review the
veteran's claim of entitlement to service
connection for PTSD.
10. If the action is adverse to the
veteran, he and his representative should
be furnished a Supplemental Statement of
the Case which summarizes the pertinent
evidence, fully cites the applicable
legal provisions, and reflects detailed
reasons and bases for the decision
reached.
Thereafter, the veteran and his representative should be
afforded the opportunity to respond thereto. The case should
then be returned to the Board for further appellate
consideration, if otherwise in order. By this REMAND the
Board intimates no opinion, either factual or legal, as to
the ultimate determination warranted in this case.
No action is required of the veteran until he receives
further notice, but he is free to submit additional evidence
and argument while the case is in remand status. See Quarles
v. Derwinski, 3 Vet. App. 129, 141 (1992).
The veteran is hereby placed on notice that pursuant to
38 C.F.R. § 3.655 (1999) failure to attend a scheduled VA
examination may result in an adverse determination. See
Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
_____________________________________
A. BRYANT
Member, Board of Veterans' Appeals